Vishwanath Yadaorao Sarane vs State Of Maharashtra
2003 Latest Caselaw 516 Bom

JUDGMENT

S.T. Kharche, J.

1. Rule. Rule is taken up forthwith and heard by consent of the both the parties.

2. This criminal revision application is directed against the order dated 24-7-2002, passed by the Judge of Special Court, Washim, below Exhibit 27, in Special Case No. 4/1998, whereby the learned Judge has rejected the application of the applicant/accused, seeking discharge from the offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act').

3. The learned Counsel for the applicant contended that the applicant was initially appointed as an Extension Officer, (Social Welfare), Zilla Parishad, Amravati and was subsequently promoted as Block Development Officer, Panchayat Samiti, Manora by order dated 28th May, 1993. He contended that Crime No. 83/1997 was registered against the applicant for the offences enumerated above, on the allegations that he was apprehended while accepting bribe. The Divisional Commissioner, Amravati Division, Amravati, suspended the applicant on 19-9-1998. A Special Case No. 4/1998 was filed and the applicant has filed an application for discharge on the ground that sanction to prosecute the applicant was not obtained, as is required under section 19 of the said Act. He contended that the said application was erroneously rejected by the trial Court.

4. The learned Counsel for the applicant further contended that in the present matter, the prosecution, instead of obtaining sanction of the Divisional Commissioner, obtained sanction of Joint Secretary, Ministry of Rural and Revenue Department, Government of Maharashtra and the said sanction was not in conformity with the provisions of section 19 of the said Act and, therefore, the impugned order passed by the learned trial Court is not sustainable in law and the same deserves to be quashed and set aside and the applicant/accused deserves to be discharged from the said criminal proceedings.

5. The learned A.P.P. contended that the applicant is involved in a serious case under sections 7, 13(i)(d) r/w section 13(ii) of the Prevention of Corruption Act and he was caught rea-handed while accepting the bribe. The said bribe amount was seized from the applicant and the charge-sheet was also filed in the Court and the matter was fixed for evidence before the trial Court on 20-8-2002. He further contended that thereafter the applicant had filed the application for discharge, which was rightly rejected by the trial Court. The learned A.P.P. further contended that from the very beginning the applicant is protracting the trial on one pretext or the other and did not co-operate with the trial Court for the disposal of the matter. He contended that the sanction to prosecute the applicant was obtained from Joint Secretary of Ministry of Rural and Revenue Department, Government of Maharashtra and the said sanction is perfectly valid, as is required under section 19 of the said Act. He contended that the Block Development Officers are appointed through Maharashtra Public Service Commission, and the Secretary is the appointing and dismissing authority and even assuming that the Revenue Commissioner, who is an appointing authority or removing authority, still it cannot be said that the sanction order passed by the Joint Secretary of the Department of Rural and Revenue Department, Government of Maharashtra, is invalid. He, therefore, contended that the present revision may be dismissed.

6. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. I think it proper to reproduce section 19 of the Act. It reads thus:

"19. Previous sanction necessary for prosecution.---(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,---

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;

(c) In the case of any other person, of any authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).---

(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, ommission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice in Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation---For the purposes of this section,---

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

7. I may usefully refer to latest Division Bench decision of the Apex Court in the case of Raj Kishor Roy v. Kamleshwar Pandey and another, . In this case the ratio laid down by the Apex Court is that: "the question whether sanction is necessary or not may have to be determined from stage to stage. Thus, far from helping the 1st respondent, this authority also supports the proposition that in certain cases, depending on the nature of the acts complained of, the complaint cannot be quashed at the initial stage itself".

8. Having regard to ratio laid down by the Apex Court in the aforesaid case, it is obvious that the question of sanction can be considered from stage to stage and the same has to be decided after giving an opportunity to the prosecution as well as defence to adduce material in support of their contentions. In the present case, it is not disputed that the applicant is a public servant and sanction to prosecute him would be required as per the provisions of section 19 of the Prevention of Corruption Act. It is a fact that the sanction to prosecute has been accorded by the Joint Secretary of the Ministry of Rural and Revenue Department, Government of Maharashtra and, therefore, prima facie, at this stage, it is difficult to hold that the sanction so accorded is invalid. In such an eventuality, I am of the considered view that the question of validity of sanction should be left open to be decided in the main judgment to be delivered by the trial Court upon conclusion of the trial. This is a case where prosecution must be given opportunity to establish its case by evidence to show that the sanction so obtained as is required under section 19 of the Act is perfectly valid, and opportunity must be given to the defence to establish that sanction to prosecute him so obtained under section 19 of the Prevention of Corruption Act, is invalid.

9. In the result, the learned trial Judge is directed to decide the Special Criminal Case No. 4/1998 according to law in the light of the observations mentioned above in this judgment expeditiously. The revision application is disposed of in the aforesaid terms.

Application disposed of accordingly.